Qu v Blacktown City Council - [2010] NSWLEC 1282

Land and Environment Court

of New South Wales

CITATION: Qu v Blacktown City Council [2010] NSWLEC 1282

PARTIES:
APPLICANT
Gang Qu
RESPONDENT
Blacktown City Council

FILE NUMBER(S): 10521 of 2010

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- deemed refusal of a brothel on the basis of proximity to sensitive land uses and the public interest; time-limited condition imposed; land uses not found to be sensitive; no finding of fact in the public interest; time-limited consent unreasonable in the circumstances; appeal upheld

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Blacktown Local Environmental Plan 1988

CASES CITED: Weynton v Rockdale City Council [1999] NSWLEC 273
Marpet Enterprises v Eurobodalla Shire Council [2000] NSWLEC 159
Wang v Blacktown City Council [2009] NSWLEC 1044
Martyn v Hornsby Shire Council [2004] NSWLEC 614
Huang v Parramatta City Council [2009] NSWLEC 1401
Wei v Parramatta City Council No 2 [2010] NSWLEC 1107
FRG Investments Pty Ltd v Bankstown City Council [2010] NSWLEC 1228
Piao v Willoughby Council [2008] NSWLEC 1407
Wendy Wei v Holroyd City Council [2007] NSWLEC 163
New Century Developments Pty Limited v Baulkham Hills Shire Council [2003] NSWLEC 154
Venus Enterprises P/L v Parramatta City Council LGRA 43

DATES OF HEARING: 22/09/2010

DATE OF JUDGMENT:
20 October 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Gough (solicitor)
SOLICITORS
Storey & Gough
RESPONDENT
Mr T O'Connor (solicitor)
SOLICITORS
Houston Dearn O'Connor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

20 October 2010

10521 of 2010 Qu v Blacktown City Council
JUDGMENT

1 COMMISSIONER: This is an appeal made under s 97 of the Environmental Planning and Assessment Act 1979 (the Act) against the deemed refusal by Blacktown City Council (the Council) of Development Application No. 10-1024 for the change of use of an existing warehouse building into a brothel with associated alterations and additions at 10 Vangeli Street Arndell Park (the site).

The site and locality

2 The site is 10 Vangeli Street Arndell Park [Lot 10 DP786328] and is located within the Arndell Park industrial area. This area is characterised by predominantly industrial and manufacturing businesses. The area contains a small number of retail and commercial land uses including small-scale food outlets.

3 The site currently contains a part one part two storey warehouse building of corrugated steel and brick construction. The front or eastern portion of the building facing Vangeli Street comprises two storeys containing office space, toilets, a kitchen and storage facilities. The majority of the building is a single storey factory floor/warehouse space with concrete floor, metal walls and roof to the height of two storeys. The warehouse is currently empty.

4 The eastern façade contains one doorway; the northern façade contains two doorways and two large roller doors to almost the height of the building.

5 Access to the site is via a ramped driveway from Vangeli Street. The northern portion of the site is a paved hardstand area with off-street parking for 11 vehicles. There are lockable gates on the driveway.

6 The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWLEC 1282
Decision Date: 20 October 2010

CaseChat Overview and Summary

The applicant, Gang Qu, has appealed to the Land and Environment Court of New South Wales against the deemed refusal by the Blacktown City Council (the Council) of a development application for the change of use of an existing warehouse building into a brothel with associated alterations and additions at 10 Vangeli Street, Arndell Park (the site). The applicant seeks to convert the existing industrial building into a brothel, proposing internal alterations including the construction of working rooms, waiting rooms, laundry, staff areas and toilets. The primary issues before the Court were whether the site is in close proximity to sensitive land uses and whether the proposal is in the public interest. The Council argued that the proposal was incompatible with nearby land uses and not in the public interest. The applicant, however, contended that the proposal complied with the planning controls and that the nearby premises were not sensitive land uses.

The Court found that the proposal complied with the planning controls in the Blacktown Local Environmental Plan 1988 and the Blacktown Development Control Plan 1992. The Court determined that neither the meat wholesaling/retailing business at 8 Vangeli Street nor the nearby Impact Youth Services premises were sensitive land uses. The Court considered that there was no evidence to support the Council's claims that the proposal would lead to an increase in criminal activity, drug use, and vandalism, or that it would adversely affect the nearby businesses or the amenity of the area. The Court found that the imposition of a time-limited condition of consent was unreasonable in the circumstances, as there was no evidence to support the need for such a condition.

The Court granted the appeal and ordered that development consent be given for the change of use of the site into a brothel, subject to the amended Plan of Management and revised conditions of consent, excluding the time-limited condition.

Orders